When you make the decision to file for divorce, you need to state the reason for the divorce in the paperwork that is filed with the Court. The reasons are called the “grounds” for divorce. With this, many clients wonder what the differences are between a “no-fault” and fault based divorce.
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The state of New Jersey is technically considered a “no-fault” state when filing for divorce. This means that blame does not need to be placed on either party for a divorce to be finalized. When filing for a “no-fault” divorce, the grounds will be “irreconcilable differences” which has become the most popular ground for divorce since becoming an option in 2007. There is a common misconception that parties need to be separated for a certain period of time prior to filing for divorce. This is not true. In order to file a divorce under irreconcilable difference, the parties simply must have experienced the irreconcilable difference for at least six months prior to filing and these differences must be the cause of the breakdown of the marriage. The reason most people file for divorce under irreconcilable difference is because neither party is required to divulge the details regarding the demise of their relationship which avoids people pointing the finger at one another and in turn can avoid hostility during the process.
While the state of New Jersey is technically considered a “no-fault” state, people do still have an option of filing for divorce under one of the fault based grounds that existed prior to the enactment of irreconcilable differences. A fault-based divorce requires that your divorce begins for one of the legally-accepted reasons and requires proof or testimony that the reason is present. The advantage to this is that the conduct of the spouse deemed at fault is considered admissible evidence during proceedings and can influence the judge’s decisions in awards and provisions. It is strongly advised that you retain an attorney if you are considering filing a fault-based divorce in order to ensure your testimony and evidence is all filed properly.
Acceptable grounds for a fault-based divorce as per N.J.S.2A:34-2 include:
- Extreme cruelty: Defined as including any physical or mental cruelty which endangers the safety or health of the plaintiff or makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant; provided that no complaint for divorce shall be filed until after 3 months from the date of the last act of cruelty complained of in the complaint, but this provision shall not be held to apply to any counterclaim.
- Desertion: Willful and continued desertion for the term of 12 or more months, which may be established by satisfactory proof that the parties have ceased to cohabit as man and wife.
- Addiction or habitual drunkenness: Meaning the marriage fell apart because one person’s addiction to any narcotic drug or habitual drunkenness for a period of 12 or more consecutive months subsequent to marriage and next preceding the filing of the complaint.
- Imprisonment: When the defendant is in jail for 18 or more consecutive months after marriage, provided that where the divorce action is not filed until after the defendant's release, the parties have not resumed cohabitation following such imprisonment.
- Institutionalization: When one party suffers from mental illness for a period of 24 or more consecutive months subsequent to marriage and next preceding the filing of the complaint.
- Adultery: Adultery exists when one spouse rejects the other by entering into a personal intimate relationship with any other person, irrespective of the specific sexual acts performed; the rejection of the spouse coupled with out-of-marriage intimacy constitutes adultery. When filing a divorce under adultery the person your spouse is having the affair with must be named in the Complaint.
- Deviant sexual conduct: Deviant sexual conduct voluntarily performed by the defendant without the consent of the plaintiff.
Filing a fault based divorce could impact the length and complexity of your case. It is always best to speak to an attorney before formally filing for divorce, and allow them to advise you on the best option to take.
At Rozin | Golinder Law, our East Brunswick divorce lawyers provide dedicated and high-quality counsel for those who need assistance with a marital dissolution issue. Our legal team knows the importance of quality representation during a divorce and that each case is as unique as the people involved in it. Our legal ability has been recognized through numerous accolades, including being named one of the Top Ten Attorneys Under 40 by the National Association of Family Law Attorneys last year.